Raymond Phenix v. James Schomig , 596 F. App'x 578 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 09 2015
MOLLY C. DWYER, CLERK
RAYMOND GENE PHENIX, No. 13-16794 U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 2:03-cv-00485-MMD-
NJK
v.
JAMES SCHOMIG; and NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Submitted January 13, 2015**
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
Petitioner Raymond Phenix appeals the district court’s order denying his
application for habeas relief. Reviewing de novo, Taylor v. Cate, 772 F.3d 842,
846–47 (9th Cir. 2014), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
The district court correctly concluded that the Nevada Supreme Court’s
decision rejecting Petitioner’s claim for prosecutorial misconduct was reasonable.
See 28 U.S.C. § 2254(d)(1) (permitting relief only where the state-court
proceedings resulted in a decision that is contrary to, or involved an unreasonable
application of, clearly established federal law); Harrington v. Richter, 562 U.S. 86,
98 (2011). In his opening statement, defense counsel opened the door for opposing
counsel to admit the challenged evidence. See Bowoto v. Chevron Corp., 621 F.3d
1116, 1130 (9th Cir. 2010) (noting that a party who raises a subject in an opening
statement "‘opens the door’" to admission of evidence on that same subject by the
opposing party (quoting United States v. Chavez, 229 F.3d 946, 952 (10th Cir.
2000))). In any event, Petitioner does not establish how any error, if one occurred,
had a "substantial and injurious effect or influence in determining the jury’s
verdict," Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993) (internal quotation
marks omitted), particularly in light of the other admissible evidence on the same
subject.
We decline to grant a certificate of appealability ("COA") with respect to
any additional issues. See 28 U.S.C. § 2253(c)(2) (stating the standard for issuance
of a COA).
AFFIRMED.
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